2012 QCCQ 3104, 2012 QCCQ 3104

Unofficial English Translation — Not Verified by SOQUIJ R. c. Palmieri 2012 QCCQ 3104 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LAVAL LOCALITY OF LAVAL Criminal Division N o. 540-01-037729-087 DATE: April 23, 2012 PRESENT: THE HONOURABLE DOMINIQUE LAROCHELLE J.C.Q. THE QUEEN Prosecutor-respondent v. Dino PALMIERI Accused-petitioner and ATTORNEY GENERAL OF QUÉBEC Impleaded party DECISION ON SENTENCING AND ON A MOTION FOR A DECLARATION OF UNCONSTITUTIONALITY REGARDING SECTIONS 742.1 AND 752 OF THE CANADIAN CRIMINAL CODE This is a true and accurate translation of the original French version 1.

CONTEXT [ 1 ] Dino Palmieri pleaded guilty to the following charge: [TRANSLATION] On or about October 19, 2008, in Laval, District of Laval, operated a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances, and thereby caused bodily harm to G . . . C . . . , [1] thus committing the indictable offence in section 249(3) of the Criminal Code . [ 2 ] The Court must now determine a just and appropriate sentence. [ 3 ] The indictable offence in section 249(3) of the Criminal Code renders the offender liable to imprisonment for a term not exceeding ten years.

There is no minimum punishment. However, a conditional sentence of imprisonment is prohibited because of the combined effect of

section 742.1 and

section 752, in the definition of "serious personal injury offence" (subparagraph ( a )(ii)), of the Criminal Code . [ 4 ] The prosecutor seeks a prison term of 18 months to 2 years. [ 5 ] The accused conceded that a sentence of detention is required, but he proposed that the sentence be served in the community, considering all the circumstances of the case and his character. [ 6 ]

Section 742.1 and

section 752 ("serious personal injury offence", subparagraph ( a )(ii)) of the Criminal Code do not allow for a conditional sentence of imprisonment for a crime constituting a serious personal injury offence, as in the present case. [ 7 ] The accused argued that the combination of these statutory provisions renders them unconstitutional because their effect arbitrarily prevents judges from imposing a conditional sentence of imprisonment in cases where such a sentence would be just and appropriate, thereby violating sections 7 and 9 of the Canadian Charter of Rights and Freedoms (hereinafter the "Charter"). [ 8 ] The accused also argued that a prison term would be cruel and unusual punishment in his case, contrary to

section 12 of the

Charter . [ 9 ] He therefore seeks a declaration of constitutional invalidity concerning the provisions limiting a judge's power to impose a conditional sentence of imprisonment—section 742.1 and

section 752 ("serious personal injury offence", subparagraph ( a )(ii)) of the Criminal Code . [ 10 ] The prosecutor and the impleaded party, the Attorney General of Québec, contest the accused's constitutional position. 2. ISSUES [ 11 ] The following questions must be resolved: 1.

Considering the objective gravity of the offence, the personal characteristics of the accused, the particular circumstances of the case and all of the principles and objectives of sentencing, what would have been an appropriate sentence for the accused prior to the legislative amendments stripping judges of their power to impose conditional sentences? Were the Court to conclude that it would have imposed a conditional sentence of imprisonment on the accused: 2.

Do the impugned parts of the statutory provisions have the effect of compelling the judge to impose an inappropriate sentence that is grossly disproportionate, in violation of

section 12 of the Charter ? In the affirmative, is the violation justified within the meaning of

section 1 of the Charter? 3. Given the prohibition against imposing a conditional sentence of imprisonment through the combined effect of

section 742.1 and

section 752, "serious personal injury offence" (( a )(ii)), is the judge compelled to impose an arbitrary sentence of imprisonment, in violation of sections 7 and 9 of the Charter ? In the affirmative, is the violation justified within the meaning of

section 1 of the Charter? 3. FACTS [ 12 ] On October 19, 2008, around 6:55 a.m., the accused was driving his 1999 Porsche Carrera east along the Autoroute 440 service road. [ 13 ] He was driving at high speed and only at the last minute did he see G.C.'s vehicle, which was leaving Autoroute 440 to take the service road. Mr.

C. was driving a Chevrolet Lumina with a trailer. [ 14 ] The accused tried to avoid him but lost control of his vehicle and hit the trailer. [ 15 ] The accused's vehicle skidded for several metres and hit the trailer again. [ 16 ] G.C.'s vehicle skidded for several metres and then flipped over. [ 17 ] The jaws of life were required to extricate the victim from his vehicle. [ 18 ] Mr. C. suffered numerous injuries. His right calf was crushed. He was hospitalized many times and had to undergo several operations.

Serious permanent physical and psychological after-effects, as well as heavy family and financial consequences, stem from the incident. [ 19 ] The accused managed to get out of his vehicle on his own. He was taken to hospital by ambulance, where he remained for a few hours as minor injuries were attended to. He was not left with any physical after-effects. [ 20 ] The vehicles were total losses. [ 21 ] The speed limit at the scene was 70 km/h. The victim was driving under the limit. He was in no way responsible for the incident. [ 22 ] The accused estimated his speed at 200 km/h at the time of the crash.

The report of the Sûreté du Québec reconstructionist, however, estimated his speed at 219 km/h. [ 23 ] The accused was arrested.

A blood sample was taken at the hospital within minutes following the incident and showed a concentration of alcohol in his blood of 94 mg of alcohol in 100 ml of blood. [ 24 ] On October 20, 2008, the accused appeared in custody and was released on an interim basis, on an undertaking to meet several conditions, including a prohibition from operating any motor vehicle. [ 25 ] On December 18, 2008, he obtained a partial change to his conditions, namely, an exemption for work purposes from the prohibition from operating a motor vehicle. [ 26 ] On May 2, 2010, he was stopped for speeding while heading north on boulevard Décarie in Montréal.

The police officer estimated his speed at 124 km/h in a 70-km/h zone. The accused admitted to speeding at 100 km/h. [ 27 ] There is an abundance of relevant evidence for sentencing. [ 28 ] With the consent of the accused, the prosecutor presented the facts from the various police reports. The victim testified at length about the circumstances of the incident and the numerous consequences it caused. [ 29 ] The accused testified about the circumstances of the incident. He also testified about the steps he has taken in his personal and professional life since the events, as did his spouse and mother.

[ 30 ] A presentence report was prepared. [ 31 ] The parties filed the following documents jointly: - the accused's driving record from the SAAQ; - the report of the SQ reconstructionist, establishing among other things that the accused hit the victim's vehicle while driving at a speed of 219 km/h in a 70 km/h zone; - the

summary of the plumitif , dated 2011-08-09 and bearing record number 500-61-302817-110, date of offence: May 2, 2010; - the results of a breathalyzer test showing the accused had a blood alcohol concentration of 94 mg of alcohol in 100 ml of blood. [ 32 ] The evidence is uncontested, except on two points: the accused admitted that he was travelling at a speed between 180 km/h and 200 km/h at the time of the incident, not at the speed estimated by the reconstruction expert; the accused admitted that he was travelling at 100 km/h when he was stopped on boulevard Décarie on May 2, 2010, rather than at the speed of 124 km/h observed by the police officer. [ 33 ] The accused is a young father, now 33 years old.

At the time of the events, he was working at his father's restaurant business. His job led him to work long hours, and often in the evening to meet with clients and on weekends until the small hours of the morning to take

part in receptions he organized for them. [ 34 ] He hit G.C.'s vehicle on the way home from work at a reception hall. [ 35 ] The accused agrees with the probation officer's

summary of the facts, which is consistent with the evidence adduced. It is worth quoting the

summary, since the accused uses it to justify his position: [TRANSLATION] “The automobile incident in question occurred in the early hours of the morning of October 19, 2008, after the accused had left work following a long day on the job (about 18 hours). He was tired, even exhausted, he said, having been awake for almost 20 hours. He had eaten little and had reportedly drunk two glasses of wine during his shift. Being fond of speed, especially since buying a Porsche less than a year ago, and not seeing any danger in speeding, he admitted driving between 180 and 200 km/h.

According to the investigator on the case, however, Mr. Palmieri's vehicle was travelling at an estimated speed of 219 km/h. The speed limit was 70 km/h. His being alone in the car, there being almost no one on the road so early in the morning and wishful thinking about his likelihood of having an incident are factors the subject mentioned to explain his behaviour, which he now finds totally careless. The crash with the victim's car was violent and seriously injured the victim.

According to our information sources, the physical consequences are serious and permanent, and have left the victim with major limitations. The offender nevertheless sustained only minor injuries. Be that as it may, he inquired about the driver's health immediately after his arrest.” [2] Personal circumstances of the accused [ 36 ] At the time of the events, the accused was 29 years of age. He did not have a criminal record. [ 37 ] He had been working for his father's business (catering and events organization) since 2006. He was married.

At the time of the incident, the couple had a young child and the accused's spouse was pregnant with a second child. [ 38 ] His lifestyle was geared toward material success. His job required him to put in long hours and his

schedule did not lend itself to the family life to which he aspired. He nonetheless gave in to the demands of his job out of loyalty to his father, so as not to displease him, and in the interest of the company. However, he was worn out by his lifestyle and wanted to make some changes. [ 39 ] The events of October 19, 2008 were a catalyst for positive change for himself and his family. He charted a new course by leaving his father's company. He has more time for his family, is more involved with his wife and his children.

The family has grown, following the birth of a third child. [ 40 ] In March 2010 and June 2011, he acquired food counters, each with five employees. He plans to acquire more soon. He took on heavy financial commitments respecting his businesses. [ 41 ] As owner, he manages the businesses, picks up supplies, oversees the kitchens and fills in as needed when short-staffed. [ 42 ] He must be available at all times and his daily activities place heavy demands on his time. He cannot entrust his responsibilities to others.

The businesses are profitable, but that profitability would be jeopardized if he had to hire someone to replace him while he served a prison term. [ 43 ] His spouse, who once had important responsibilities in a large business, chose to leave the labour market to devote herself to her children. The accused is therefore the family's sole breadwinner. [ 44 ] The family lives in the suburbs and is distressed by the accused's situation.

Depriving the accused of liberty and prohibiting him from operating a motor vehicle will have major consequences for all members of the family. [ 45 ] If the accused were allowed to serve his sentence in the community, he could continue to go about his professional business with the help of a driver.

In addition, he would be able to support his spouse at home and look after the children, in particular in the morning and evening while she takes some of the children to school or elsewhere. [ 46 ] Consequently, the accused would like to be able to serve his sentence in the community, so as not to put the fate of his businesses

on the line or make things harder for his family. [ 47 ] We should acknowledge that the changes the accused deliberately made in his professional and family life following the incident make the consequences of a possible prison term more problematic than in his previous situation, when his father was his employer and he had fewer children.

The changes were made over the months, despite the uncertainty about the sentence that would inexorably be handed down. [ 48 ] The probation officer had this to say: [TRANSLATION] “. . . although this sad event led to substantial changes in his lifestyle and had a significant impact on his values, now more strongly focused on his family life, it does not appear to have motivated him to change the way he drives. As a result, the speeding ticket he got in 2010, after the incident at issue here, cannot be disregarded and leads me to believe that he still has things to learn from his past experience.

While this is Mr. Palmieri's first brush with criminal law, the gravity of the consequences of his current actions cannot be overlooked. The actions point to the subject's carelessness and irresponsibility when he is behind the wheel of his car, whereas he is so attentive and generous in his personal life. The cognitive distortions that come to the fore when he drives, his invincibility, his recklessness even, could thus be factors that caused him to act out . . . .” [3] [ 49 ] The accused expressed remorse for his conduct and he is very sad about the consequences for the victim.

Consequences for the victim [ 50 ] Mr. G.C. testified at length about the tragic consequences of the incident for his life and that of his family. [ 51 ] At the time of the incident he was a construction foreman. He operated heavy machinery and drove heavy vehicles, particularly in the field of paving and landscaping. He worked 10 to 12 hours a day. His annual income varied between $72 000 and $100 000, depending on overtime, and sometimes even higher when he went to northern Québec on special projects. [ 52 ] He was married and the father of a 13-year-old girl and a 15-year-old boy.

He was involved in his children's sports activities: hockey and soccer. [ 53 ] He liked to hunt and fish when he was on vacation. The incident changed his life. [ 54 ] He does not remember the incident itself. He was taken by ambulance to the Hôpital du Sacré-Cœur, where he remained until November 18, 2008. [ 55 ] The muscle in his right leg was crushed. One muscle is dead. He had many operations. For an entire month there was no skin on his leg. Grafts using skin from his thigh were done to cover the leg. The operation was 80% successful.

Subsequently, he was transported to the Jewish General Hospital, where he remained until December. He was then treated as an outpatient at the hospital for a year and had to take a taxi there every day. [ 56 ] The risk of infection was serious. He described his hospital stay as hell. He shared his room with five people. [ 57 ] His left leg sustained lacerations. The meniscus in his left knee had to be removed. He sustained a lumbar sprain. [ 58 ] He required the services of an orthopedist, a plastic surgeon, an ergotherapist, a physiotherapist and a psychologist.

He needed strong medication for pain relief. [ 59 ] The healing process lasted a full year. After one year of care, it was noted that there would regrettably be no further progress. Major physical disabilities remain. From an esthetic standpoint, the right leg is completely deformed, there is a hole in the leg and a scar on the knee, and his thigh is a burgundy colour. [ 60 ] He cannot remain still in a standing position. He has veinous insufficiency in his right leg, which swells. The skin on his leg cracks. The skin is stuck to the muscle. He has lost feeling in his skin, putting him at risk of infection.

He cannot straighten his leg. He has problems with his knee and ankle. He cannot kneel or crouch. He cannot swim, use a spa or wear shorts. [ 61 ] He has difficulty walking because his Achilles tendon lacks elasticity, with no potential for improvement. He can walk only short distances. [ 62 ] He can no longer ski or skate. He can no longer go on the ice with his children or even carry a hockey bag. [ 63 ] He can no longer hunt or even walk in the woods. He can no longer play, because he cannot put pressure on his leg. He can no longer go up stairs or run.

He had to make changes to his boat in order to continue fishing. [ 64 ] He cannot lift weights of more than 20 pounds, and then only occasionally. He cannot drive a vehicle for more than one hour. That is an additional problem for him, because he is from Lac Saint-Jean, and in order to go there, he must drive several hours. [ 65 ] During his convalescence he received an indemnity from the Société d'assurance automobile (hereinafter, the "SAAQ"), limited to $43 000 a year.

[ 66 ] After a year, due to no change in his condition, he was unable to resume his employment. On February 13, 2011, he was declared fit for work. The SAAQ provided him with the services of a guidance counsellor. Because of his physical limitations, he can no longer hold employment consistent with his strengths and interests. He was offered types of employment likely to earn him an annual salary of $20 000 a year. [ 67 ] He did everything possible for his rehabilitation. When the permanence of his situation sank in, G.C. became depressed, sad, anxious and aggressive.

His marriage did not survive this ordeal and they separated in July 2010. The children live with their mother. G.C.'s spouse is nonetheless present in his life, and she was in Court with him. [ 68 ] He contested the SAAQ's decision about the type of employment he could hold so as not to lose his insurance and, to that end, he incurred substantial expenses. He currently holds a clerical position that earns him a much lower salary. 4.

THE LAW Applicable sentences [ 69 ] Operation of a motor vehicle in a manner that is dangerous to the public and causes bodily harm, as set out in subsection 249(3) of the Criminal Code , renders the offender liable to imprisonment for a maximum term of ten years . [ 70 ] There is no minimum sentence. [ 71 ] Under

section 752 (subparagraph ( a )(ii)) of the Criminal Code ) a "serious personal injury offence" is a crime that involves "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person causing serious personal injury", for which the offender may be sentenced to imprisonment for ten years or more.

Section 742.1 of the Criminal Code prohibits conditional sentences of imprisonment in such cases. General principles and objectives of sentencing [ 72 ] In sections 718 et seq. of the Criminal Code , the legislator sets forth the objectives and principles of sentencing. 718. Purpose – The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 73 ] In addition, the Criminal Code provides that a judge must impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender. [4] A judge must increase or reduce the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 74 ] A judge must impose a sentence that is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

An offender should not be deprived of liberty if less restrictive sanctions are appropriate.

Positions of the parties on a just and appropriate sentence Prosecutor [ 75 ] Regardless of whether a conditional sentence is legally possible, the prosecutor believes this is a case in which imprisonment for a term of between 18 and 24 months would be justified. [ 76 ] This position is based primarily on the necessity of meeting the objectives of denunciation and deterrence, which cannot be attained through a sentence served in the community, supported principally by Côté [5] and Hakim . [6] [ 77 ] In the prosecutor's view, a conditional sentence of imprisonment would have no effect on the accused, who would thus continue to lead his current life of working and spending his free time with his family. [ 78 ] As for the consequences of imprisonment on his livelihood, the prosecutor believes that the accused has the possibility of delegating his professional responsibilities, as he has begun doing, that he has the financial resources to offset his absence and that he can

count on the ability and willingness of his spouse to help him. Accused [ 79 ] The accused acknowledges the gravity of the offence, but believes that numerous mitigating factors argue in favour of the imposition of a sentence to be served in the community. [ 80 ] He has changed since the events. He is not the same man anymore. His family life and professional responsibilities take up all his time.

Even if he were able to get help with his professional affairs, he is the only one in charge. [ 81 ] He can help right the wrongs done to society by doing community work. [7] Prohibition from operating a motor vehicle [ 82 ] The parties agree that the prohibition from operating a motor vehicle to be imposed under section 259(3.2) (

a) of the Criminal Code must not exceed one year. 5. ANALYSIS Aggravating and mitigating factors [ 83 ] To reach its decision the Court must identify the aggravating and mitigating factors in this case.

It must also determine the aggravating facts that have been proven beyond a reasonable doubt, in keeping with Gardiner . [8] Aggravating factors [ 84 ] Some of the aggravating factors submitted by the prosecutor are contested, namely, the accused's speed on impact and his speed when he was stopped on boulevard Décarie on May 2, 2010. [ 85 ] The speed of 219 km/h is an aggravating fact proven beyond a reasonable doubt. The circumstances of the accused's observation of his own speed and his testimony do not raise any doubt in the Court's mind, given the evidence as a whole.

The reconstructionist's report is contradicted solely by the accused's assertion that he was travelling at a slower speed.

The reconstructionist's report, filed to serve as evidence, is not contested. [ 86 ] As for the speeding incident of May 2, 2010, whereas the conditions of the interim release included a prohibition from operating a motor vehicle except for work purposes, the benefit of the doubt as to the accused's speed of 100 km/h, to which he admitted, goes to the accused in the absence of any other evidence. [ 87 ] In addition to the above aggravating factors, the Court notes the following: ▪ the consequences are dramatic for the victim and his family (pain; long and frequent hospitalizations; treatment; loss of mobility; sensory loss; loss of autonomy and self-esteem; drastic drop in employment income; limits on his employability, and inability to hold employment in his field of interest and area of expertise; substantial limits on his parental responsibilities; depression; the couple's breakup; and the end of family cohabitation); ▪ he was exceeding almost three times the speed limit; ▪ he had had alcohol; ▪ his dangerousness was aggravated by fatigue; ▪ he was caught speeding during his interim release; ▪ according to the information on his driving record, he was caught speeding on the following dates: October 25, 2007, November 2, 2007, September 2, 2008 and March 22, 2008; ▪ he was caught again for speeding, on May 2, 2010; the speeding at issue in the present case is part of a pattern; ▪ his repeated speeding shows a low degree of consideration; ▪ he used aggravating factors as excuses (alcohol, fatigue and mistakenness as to the speed limit on boulevard Décarie); ▪ the risk of a repeat offence is not completely ruled out.

Mitigating factors [ 88 ] The record shows the following mitigating factors: ▪ the accused pleaded guilty, which avoids the inconvenience of a trial and is generally perceived as a sign of rehabilitation; ▪ he admitted the facts alleged against him; ▪ he cooperated well for the purposes of the presentence report;

▪ he does not have a criminal record; ▪ he plays a positive role in his family and in the labour market; ▪ he is sincerely remorseful. Jurisprudence prior to the impugned amendments [ 89 ] In Côté , [9] the accused was found guilty of impaired driving causing bodily harm to two people. The judge imposed imprisonment for a term of 18 months. Having examined the jurisprudence with regard to driving-related sentences, Judge Serge Champoux of this Court concluded as follows: [TRANSLATION] “[36] I note from these decisions the following elements in particular: 1.

These decisions do not all concern the same charges, but they are all related and, in general, the principles they contain apply. 2. There are altogether too many driving-related crimes, especially ones involving speeding and alcohol. 3. In general, these crimes are not committed by habitual criminals but, rather, by ordinary people who often do not have a criminal record and who generally have a family and a job and, all things considered, function well in society. Such people are more likely to be deterred by stiff sentences. 4. These crimes cause terrible harm and serious damage.

In the worst cases, death results, but very often victims are left with extremely serious handicaps and their lives are completely destroyed, whereas they were perfectly innocent and played no

part in the offence (see , for example, R. v. Busque , 2009 QCCQ 5110 (CanLlI) , 2009 QCCQ 5110 ) . 5. Beyond the bodily harm and possible loss of innocent loved ones, it is worth bearing in mind the direct costs and the expenses for both victims and society, which is involved in caring for and compensating victims or, in many cases, the accused.

The costs to the healthcare system, for example, come to mind. [37] Given these considerations, it seems to me that the factors of denunciation and deterrence, in particular, should be taken to heart. [38] In addition, the virtually unanimous viewpoint is that imprisonment is the sentence to be considered.

It is in fact what both parties contend, although the defence claims that the sentence can be served in the community. [39] On the basis of the jurisprudence considered, it seems to me that sentences to be served in the community are far from constituting the majority of decisions involving impaired driving causing bodily harm.” [ 90 ] In Hakim , [10] the Court of Appeal upheld a sentence of imprisonment for a term of 18 months for an offence of dangerous driving causing bodily harm.

The accused, following a lapse in judgment and a dangerous manoeuvre, violently hit a young woman who remained in a permanent quasi-vegetative state. At the time of the impact he was driving at about 45 to 50 km/h in a 40-km/h zone and had tried, in vain, to avoid the victim.

He was not racing and there was no premeditation. [ 91 ] The Court of Appeal pointed out that, in cases of dangerous operation causing bodily harm, the factors of general deterrence and of denunciation are very important. [11] The Court referred to Paré , [12] in which it said that driving-related offences were a scourge and that conditional sentences of imprisonment, at a time when they were still available, were a measure reserved solely for cases in which personal factors offset the great need for general deterrence . [TRANSLATION] “[31] Deschamps J. said the following in Paré : 4 There is no need to quote here the decisions in which the courts have denounced the scourge of driving-related offences.

This case is a dramatic example. While the legislator did not rule out the application of conditional sentences of imprisonment for driving offences, I believe that, for a conditional sentence to be imposed, the specific conditions must be such that the personal factors offset the great need for general deterrence . . . ." [ 92 ] In Ferland , [13] rendered in 2009, our Court of Appeal upheld the sentences of imprisonment for a term of 42 months, to be served concurrently and imposed for two charges—dangerous operation causing death and dangerous operation causing bodily harm.

In that case, the accused was driving his employer's vehicle on a highway in heavy rain, at a speed of 160 km/h, when he tried to pass a tractor-trailer. The accused's vehicle aquaplaned and skidded, left its lane and hit full-on an oncoming vehicle in the other lane. The driver of the other vehicle was killed and her four-year-old grandson was seriously injured, in addition to suffering psychological trauma.

The accused himself was seriously injured and became a CSST recipient. [ 93 ] In the unanimous judgment Justice Rochon examined a wide range of sentences imposed in Canada for offences involving dangerous operation causing death or bodily harm, and observed the following: [TRANSLATION] "[45] Examination of these cases leads me to make the following observations. Any comparative study has inherent limitations. It strikes me as difficult, if not inappropriate, to isolate a factor like consumption or non-consumption of alcohol, with a view to drawing an absolute conclusion, as proposed to me by the appellant.

Sentencing is a polycentric exercise in which the judge must take into consideration several factors in applying penological objectives and principles. That being so, it seems to me risky, even reckless, to establish categories on the basis of specific factors taken in isolation rather than considered as a whole.

For example, in a case of dangerous operation, driving over the speed limit in a school zone can be as aggravating a factor as driving on a highway with a blood alcohol concentration of just over the authorized threshold.” [ 94 ] Justice Rochon, in examining four recent Court of Appeal decisions [14] — Hakim v. R. , 2009 QCCA 25 (CanLlI), 2009 QCCA 25; Duval v. R. , 2008 QCCA 578 (CanLlI), 2008 QCCA 578; St-Laurent v. R ., 2008 QCCA 781 (CanLlI), 2008 QCCA 781; R. v.

Gilbert , 2007 QCCA 1607 (CanLlI)—noted the following: [TRANSLATION] [41] These are appeals from sentences on charges of dangerous operation causing bodily harm or death. The accused are young and do not have a criminal record. Alcohol is not involved. The risk of a repeat offence is low. The accused are sincerely remorseful. They are not criminals.

The sentences vary from 18 months to 3 years in prison. [ 95 ] Thus, the judge has considerable discretionary power to impose a sentence based on the circumstances of the offence, its consequences and the character of the accused. [ 96 ] In order to pronounce a sentence that takes into account all of the relevant circumstances in the present case, the Court believes that a sentence of 18 months in prison is indicated and consistent with the decisions rendered by the courts in similar circumstances. [ 97 ] As we will see in detail,

section 742.1 of the Criminal Code does not allow the Court to impose a conditional sentence of imprisonment, because the incident caused by the accused caused the victim bodily harm, which constitutes a serious personal injury offence under

section 752 of the Criminal Code. [ 98 ] If the Court had the power to impose a conditional sentence of imprisonment on Mr. Palmieri, it would do so.

Indeed, this is a case where no minimum sentence is prescribed, where the appropriate sentence of detention is under two years, where the Court is convinced that the measure would not endanger the safety of the community and where the measure, supported by the appropriate conditions, would be in keeping with the purpose and principles set forth in sections 718 to 718.2 of the Criminal Code . [ 99 ] In Proulx , [15] the Supreme Court unanimously stated that, in cases where detention is not necessary to ensure public safety, the public will be better served by the imposition of a sentence to be served in the community, because the objectives of reintegration into society and rehabilitation will be easier to meet. [16] The Court also acknowledged that the objectives of denunciation and deterrence can be attained by such a measure, because the accused will encounter members of the community during his or her sentence. [17] “[105] The stigma of a conditional sentence with house arrest should not be underestimated.

Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.” [ 100 ] Given his family and professional responsibilities, were the accused to be handed a conditional sentence of imprisonment, he would be confronted daily, and over a prolonged period of time, by the stigma of his sentence in a community that condemns his actions. [ 101 ] The jurisprudence examined with regard to sentences of detention for offences involving dangerous operation causing bodily harm committed prior to December 1, 2007 includes examples of conditional sentences of imprisonment. [ 102 ] In conclusion, considering the objective gravity of the offence, the personal characteristics of the accused, the particular circumstances of the case and all of the principles and objectives of sentencing, the Court believes that a conditional sentence of imprisonment of 18 months would have been appropriate for the accused prior to the legislative amendments removing from judges the power to impose conditional sentences.

To that sentence the Court finds appropriate to add one year's probation involving community work as restitution to the community. [ 103 ] As for the prohibition from operating a motor vehicle under section 259(3.2) (

a) of the Criminal Code , the parties' joint position on the duration of one year does not persuade the Court. Operating a motor vehicle is a privilege. The accused's driving record and the jurisprudence justify a two-year prohibition from operating a motor vehicle. 6. CONSTITUTIONAL REVIEW [ 104 ] In the circumstances the Court is justified in proceeding with the constitutional review sought by the accused and in answering the questions below:

2. Do the impugned parts of the statutory provisions have the effect of compelling the judge to impose an inappropriate sentence that is grossly disproportionate, in violation of

section 12 of the Charter ? In the affirmative, is the violation justified within the meaning of

section 1 of the Charter? 3. Given the prohibition against imposing a conditional sentence of imprisonment through the combined effect of

section 742.1 and

section 752 , "serious personal injury offence" (subparagraph ( a )(ii)), is the judge compelled to impose an arbitrary sentence of imprisonment, in violation of sections 7 and 9 of the Charter ? In the affirmative, is the violation justified within the meaning of

section 1 of the Charter ? Statutory provisions: sections 742.1 and 752 of the Criminal Code [ 105 ]

Section 742.1 of the Criminal Code provides for the imposition of a conditional sentence. 742.1 Imposing of conditional sentence — If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752 , a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 , the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [18] [Emphasis added.] [ 106 ]

Section 752 of the Criminal Code defines "serious personal injury offence" as follows:

Definitions 752. In this Part, . . . "serious personal injury offence" "sévices graves à la personne" "serious personal injury offence" means: (

a) an indictable offence , other than high treason, treason, first degree murder or second degree murder, involving: (

i) the use or attempted use of violence against another person, or, (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person ; and for which the offender may be sentenced to imprisonment for ten years or more, or (

b) an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [19] [Emphasis added.] [ 107 ] These provisions, the constitutional validity of which is contested, were enacted or amended on November 30, 2007. [ 108 ] The amendments repealed the discretionary power of judges to order that sentences of detention be served in the community (conditional sentence of imprisonment), in the case of indictable offences for which the offender may be sentenced to imprisonment for ten years or more and which involve serious personal injury to another person. [ 109 ] Before the amendments came into force on November 30, 2007, the courts had the discretionary power to impose conditional sentences of imprisonment for offences involving dangerous operation causing bodily harm. [ 110 ] A serious personal injury offence was not in itself a reason to rule out a conditional sentence of imprisonment. [ 111 ] The accused argued that the new parts of

section 742.1 and

section 752, "serious personal injury offence" (subparagraph ( a )(ii)), of the Criminal Code violate the Charter , because they deprive the courts of the power to impose just and fair penalties when a conditional sentence of imprisonment would adequately meet the valid objectives and principles of sentencing. The accused based his constitutional challenge on

section 12 (cruel and unusual punishment) and sections 7 and 9 (right to be free from arbitrary detention) of the Charter. The arguments will be dealt with in that order.

A - RIGHT NOT TO BE SUBJECT TO CRUEL AND UNUSUAL PUNISHMENT/

section 12 [112] The accused argued that the impugned provisions violate

section 12 of the Charter by depriving the judge of the possibility ofimposing a conditional sentence of imprisonment even if he concludes that it is the appropriate measure under the criteria in sections 718et seq. of the Criminal Code. A sentence of imprisonment resulting solely from the effect of the impugned provisions constitutes crueland unusual punishment when not warranted under those criteria. [113] In R. v.

Perry,[20] Judge Valmont Beaulieu of this Court concluded that the provisions violated sections 7, 9 and 12 of theCharter because they intruded excessively and unreasonably on the discretionary power of the sentencing judge by compelling the judgeto impose a grossly disproportionate sentence and that imprisonment would be a disproportionate sentence for the accused Perry. Constitutional provision [114] Under

section 12 of the Charter, everyone has the right not to be subject to cruel and unusual treatment or punishment. 12. Cruelty – Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. ISSUE 2. Do the impugned parts of the statutory provisions have the effect of compelling the judge to impose an inappropriate sentence that isgrossly disproportionate, in violation of

section 12 of the Charter? In the affirmative, is the violation justified within the meaning ofsection 1 of the Charter? [115] The Supreme Court of Canada has ruled many times on

section 12 of the Charter in constitutional challenges to mandatoryminimum sentences of imprisonment: R. v. Goltz, (SCC), [1991] 3 S.C.R. 485; R. v. Brown, (SCC),[1994] 3 S.C.R. 749; R. v. Morrisey, 2000 SCC 39; R. v. Smith, 1987 CanLlI 64 (SCC); R. v. Latimer, 2001 SCC 1; R. v. Ferguson, 2008SCC 6. [116] In R. v. Lyons (SCC), [1987] 2 S.C.R. 309, the Court also ruled on

section 12 of the Charter to determine whethera sentence of indeterminate detention in the case of a person declared a "dangerous offender" was cruel and unusual punishment. [117]

Section 12 jurisprudence abounds. According to that jurisprudence, the test for determining whether a given sentence constitutescruel and unusual treatment consists in evaluating whether the sentence is grossly disproportionate. [118] In R. v. Wiles, 2005 SCC 84,[21] the Court ruled on whether a mandatory firearms prohibition order upon conviction for theoffence of production of cannabis was cruel and unusual punishment.

Charron J., in a unanimous decision, cited Smith, [22] at para. 55,and Morrissey,[23] at para. 26, and had this to say: “4 This Court has dealt with s. 12 on many occasions and there is no controversy on the test that must be met. Treatment or punishmentwhich is disproportionate or "merely excessive" is not "cruel and unusual": R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, atp. 1072. The treatment or punishment must be "so excessive as to outrage standards of decency": Smith, at p. 1072; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485, at p. 499; R. v. Luxton, (SCC), [1990] 2 S.C.R. 711, at p. 724.

The court must besatisfied that "the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishmentabhorrent or intolerable": R. v. Morrisey, [2000] 2 S.C.R. 90, 2000 SCC 39, at para. 26 (emphasis in original).” [Emphasis added.] [119] The burden of proving a

section 12 violation is thus a heavy one. In R. v. Smith, (SCC), [1987] 1 S.C.R. 1045,Justice Lamer stated as follows the rigorous test applicable to a sentence review under

section 12 of the Charter. He wrote, on page 1072: “The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more thanmerely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation,and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence.

Section 12 will only be infringedwhere the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.” [120] In Steele v. Mountain Institution,[24] the Court indicated that it was exceptional for a sentence to violate

section 12. “It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions ofs. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. Alesser test would tend to trivialize the Charter.” [121] In Latimer,[25] the Supreme Court reiterated the oft-repeated position that deference is required with respect to the gravity ofoffences and sentences.

While acknowledging the power of the courts to intervene in the clearest of cases where sentences are excessive,contrary to the "standards of decency", it restated the deference owed by the courts to the choices of the legislator, who has broaddiscretion "in proscribing conduct as criminal and in determining proper punishment". [122] In determining whether a sentence is cruel or unusual punishment, a judge must assess whether the sentence is grosslydisproportionate, considering "the gravity of the offence, the personal characteristics of the offender and the particular circumstances ofthe case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particularoffender or to protect the public from this particular offender".

The judge must also consider the effect of the sentence actually imposed,

including the quantum of sentence, as well as the nature, length and circumstances in which the sentence is imposed. [26] [ 123 ] In R. v. Goltz , [27] the Supreme Court had to determine whether a mandatory minimum sentence of seven days' imprisonment for conviction of driving while prohibited violated

section 12 of the Charter . It advocated a dual aspect analysis: (1) assessment of the punishment with regard to the particular circumstances and the characteristics of the offender; (2) assessment of the statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances. “41 There are two aspects to the analysis of invalidity under s. 12.

One aspect involves the assessment of the challenged penalty or sanction from the perspective of the person actually subjected to it, balancing the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender .

If it is concluded that the challenged provision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real and particular circumstances , then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter . There may be no need to examine hypothetical situations or imaginary offenders .

This was not the case in Smith , and for that reason the Court was obliged to examine other reasonably imaginable circumstances in which the challenged law might violate s. 12 . 42 If the particular facts of the case do not warrant a finding of gross disproportionality, there may remain another aspect to be examined, namely a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases .” [Emphasis added.] [ 124 ] In R. v.

Goltz , [28] Justice Gonthier added other factors to examine, prompting the following questions: - Is the punishment necessary to achieve a valid penal purpose? - Is it founded on recognized sentencing principles? - Do valid alternatives to the punishment imposed exist? - To some extent, does a comparison with punishments imposed for other crimes in the same jurisdiction reveal great disproportionality? [ 125 ] These factors are not decisive in themselves. [29] First aspect: assessment of the punishment with regard to the particular circumstances and the characteristics of the offender [ 126 ] Is a sentence of imprisonment cruel and unusual punishment considering all the circumstances of the case and the character of the accused?

"gravity of the offence committed" [ 127 ] From an objective and subjective standpoint, the accused committed a serious offence. Dangerous driving causing bodily harm renders the offender liable to imprisonment for a term not exceeding ten years. The crime is likely to have serious physical and psychological consequences for the immediate victims and their family, in addition to financial consequences for society. [ 128 ] The legislator and the courts agree that the gravity of the prohibited conduct must be recognized.

Fully aware that this type of crime is often committed by people who generally adhere to society's values, appellate courts have repeatedly indicated that the factors of denunciation and deterrence must prevail in imposing driving-related sentences. [30] [ 129 ] The present case is marked by the gravest possible consequences of this type of crime. "personal characteristics of the offender" [ 130 ] Through his family and professional life, the accused plays a positive social role. He does not have a criminal record.

However, the evidence of his personal characteristics from the presentence report, his testimony and his driving record shows his disregard for the safety of others and the law, as well as his recklessness and his wishful thinking with respect to the consequences of his acts. "particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender" [ 131 ] The record reveals numerous aggravating circumstances, noted above.

The dangerous operation occurred on a public road. The accused was driving at a speed almost three times the limit. He was tired. He had drunk alcohol. The victim suffered heavy physical, psychological, financial and family consequences. [ 132 ] To punish, rehabilitate or deter this particular offender or to protect the public from this particular offender, as stated previously, a sentence of detention is indicated, but it is not necessary to send him to prison to attain these objectives.

"effect of the sentence" [ 133 ] The accused adduced evidence that a sentence of imprisonment would adversely affect the management of his businesses because he would have to delegate all of his many responsibilities to someone else. Since the offence, however, he has done little in that regard despite the legislation in force and the jurisprudence indicating imprisonment. His wishful thinking seems persistent. [ 134 ] There is no doubt that imprisonment would impose a heavy burden on his spouse, who would have to assume all of the family

responsibilities alone. "penological objectives and principles of sentencing" [135] Imprisonment is a penal measure whose legality and value in attaining valid objectives—for example the objective ofdenunciation—are recognized by the courts.

In Proulx,[31] Justice Lamer, speaking on behalf of a unanimous court, restored thesentence of 18 months' imprisonment imposed by the trial judge on a charge of dangerous operation causing death and a charge ofdangerous operation causing bodily harm, to which the accused, 18 years old with no criminal record, pleaded guilty. “[106] The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender,the nature of the conditions imposed, and the community in which the sentence is to be served.

As a general matter, the more serious theoffence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However, there maybe certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which toexpress society’s condemnation of the offender’s conduct. (ii) Deterrence [107] Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. . . .” [Emphasis added.] [136] In cases where bodily harm resulted from voluntary or negligent conduct by the accused, the courts have regularly opted forimprisonment, to be served in custody or in the community.

There is no great disproportionality compared with sentences imposed forother crimes in the same jurisdiction. [137] In the present case there are no valid alternatives to imprisonment for the accused, due to the many aggravating factors, which arenot attenuated by the mitigating circumstances.

His criminal liability in the incident, and the consequences for the victim in particular,militate in favour of imprisonment to the exclusion of any other form of punishment. [138] The impugned provisions do not, however, prevent the sentencing judge from resorting to other measures—such as a fine,community work and probation when the circumstances allow, including in the case of serious personal injury offences—in order toattain the valid objectives of sentencing.

Conclusion on the first aspect [139] After considering all of the essential elements to determine whether a sentence of imprisonment is grossly or excessivelydisproportionate to the offence and the accused, such that Canadians would find the punishment abhorrent or intolerable, the Court findsthat it is not so.

Second aspect: assessment of the provision in light of reasonable hypothetical circumstances [140] A conclusion that the punishment is not grossly or excessively disproportionate in regard to the particular circumstances and thecharacteristics of the offender may justify an analysis of reasonable hypothetical circumstances, the second part of the

section 12test.[32] [141] Reasonable hypothetical circumstances are defined as follows in Goltz:[33] “A reasonable hypothetical example is one which is not far-fetched or only marginally imaginable as a live possibility. While the Court isunavoidably required to consider factual patterns other than that presented by the respondent's case, this is not a licence to invalidatestatutes on the basis of remote or extreme examples. Laws typically aim to govern a particular field generally, so that they apply to arange of persons and circumstances.

It is true that this Court has been vigilant, wherever possible, to ensure that a proper factualfoundation exists before measuring legislation against the Charter (Danson v. Ontario (Attorney General), (SCC),[1990] 2 S.C.R. 1086, at p. 1099, and MacKay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, at pp. 361-62). Yet it has beennoted above that s. 12 jurisprudence does not contemplate a standard of review in which that kind of factual foundation is available inevery instance.

The applicable standard must focus on imaginable circumstances which could commonly arise in day-to-day life.” [Emphasis added.] [142] When the Court finds that, given the particular facts of the case,

section 12 of the Charter has not been violated, it must considerreasonable hypothetical circumstances submitted to it by the party challenging the constitutionality of the statutory provision. Failure bythe party to submit reasonably imaginable circumstances to the Court leads to the rejection of the hypothetical limb of the

section 12inquiry.[34] “81 On the second aspect of the s. 12 analysis, the onus to demonstrate a reasonable hypothetical circumstance in which enforcement ofthe statute would violate s. 12 for imposing excessive or grossly disproportionate punishment remains with the party challenging theprovision's validity. In the instant appeal, that onus was not discharged. Consequently, the challenge based on the second andhypothetical limb of the s. 12 inquiry must also fail.” [Emphasis added.] [143] In the present case, the accused did not submit any examples of reasonable hypothetical circumstances in an effort to convincethe Court of the unconstitutionality of the impugned provisions in regard to

section 12 of the Charter. Conclusion on the second aspect

[ 144 ] The

section 12 Charter review based on the existence of a reasonable hypothetical circumstance must be dismissed. CONCLUSIONS REGARDING

SECTION 12 [ 145 ] The accused did not discharge his burden of demonstrating that

section 742.1 and

section 752 ("serious personal injury offence", subparagraph ( a )(ii)) of the Criminal Code have the effect of compelling the judge to impose a sentence so inappropriate as to be grossly disproportionate, in violation of

section 12 of the Charter . [ 146 ] Consequently, there is no reason to examine these provisions on the basis of

section 1 of the Charter . B - RIGHT TO BE FREE FROM ARBITRARY DETENTION (sections 7 and 9) [ 147 ] The accused argued that the impugned provisions violate the Charter by depriving him of his right to be free from arbitrary detention, protected under sections 9 and 7 as a principle of fundamental justice. Constitutional provisions Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Detention or imprisonment 9.

Everyone has the right not to be arbitrarily detained or imprisoned. ISSUE [ 148 ] The Court must answer the question below: 3. Given the prohibition against imposing a conditional sentence of imprisonment through the combined effect of

section 742.1 and

section 752 , "serious personal injury offence" (( a )(ii)), is the judge compelled to impose an arbitrary sentence of imprisonment, in violation of sections 7 and 9 of the Charter ? In the affirmative, is the violation justified within the meaning of

section 1 of the Charter ? [ 149 ] As mentioned by the Supreme Court in Smith , [35] in addition to the protection afforded by

section 12 , the Charter provides express protection against arbitrary imprisonment and against treatment contrary to the principles of fundamental justice. “62. Both countries protect roughly the same rights but the means by which this has been achieved are not identical. In addition to the protection afforded by s. 12 , our Charter provides express protection against arbitrary imprisonment (s. 9) and against deprivations of the right to life, liberty and security of the person in breach of the principles of fundamental justice (s. 7) .

Furthermore, as there is no parallel to ss. 1 and 24 of the Charter in the American Constitution, the dynamics of challenges to the validity of American laws are different. As a result, judicial

interpretation of the Eighth Amendment has had to be more expansive than would be necessary under s. 12 of the Charter . In Canada, the protection of one's liberty is to be found in various provisions of the Charter and the content of each of those sections must be determined in light of the guarantees enunciated in the other sections and the content the courts will be putting into those sections. Thus, any comments on the meaning of s. 12 must be made with s. 9 in mind and, as whenever ss. 8 to 14 are at issue, in light of s. 7 ( see Re B.C.

Motor Vehicle Act , supra ) .” [Emphasis added.] REVIEW CRITERIA [ 150 ] In reaching a decision the Court must first conduct a constitutional review under

section 9 of the Charter , which provides for specific protection against the arbitrary detention purportedly included in

section 7. [36] “28. Sections 8 to 14, in other words, address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7 . It would be incon​gruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14.

The alternative, which is to interpret all of ss. 8 to 14 in a "narrow and technical" manner for the sake of congruity, is out of the question ( Law Society of Upper Canada v. Skapinker , supra , at p. 366).” [37] [Emphasis added.] [ 151 ] Charkaoui [38] recognizes the importance of the protection under

section 9 of the Charter and the conditions determining the legality of detention. “88

Section 9 of the Charter guarantees freedom from arbitrary detention. This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law . . . . 89 . . . Detention is not arbitrary where there are "standards that are rationally related to the purpose of the power of detention": P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 46-5.” [ 152 ] To determine whether detention is in conformity with the right, the Court refers to the review criteria in Lyons . [39]

“62. However, even giving the word "arbitrary" its broadest signification, it is readily apparent that not only is the incarceration statutorily authorized, but that the legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions under which an offender may be designated as dangerous. If these criteria are themselves unconstitutional, it is because they otherwise fail adequately to safeguard the liberty of the individual, not because they are arbitrary .

Indeed, as Ewaschuk J. observed in Re Moore, supra , at p. 314, ". . . the legislative criteria for finding a person a dangerous offender [are] perhaps the most detailed and demanding in the Criminal Code ". Moreover, implicit in my discussion of the s. 12 issue is the common sense conclusion that the criteria in

Part XXI are anything but arbitrary in relation to the objectives sought to be attained ; they are clearly designed to segregate a small group of highly dangerous criminals posing threats to the physical or mental well-being of their victims .” [Emphasis added.] [ 153 ] The above decision sets forth factors for reviewing the constitutionality of detention, which may be adapted as follows to the present case. 1. Is the limit on liberty—negation of the possibility of serving a sentence of detention in the community—statutorily authorized? 2. Does the legislation target a narrow class of offenders? 3.

Is the suspension of conditional sentences of imprisonment in the case of offences causing serious personal injury rationally connected to the legislative objective? [ 154 ] In Luxton , [40] the Supreme Court considered these criteria in relation to

section 9 of the Charter , and had this to say: “The incarceration is statutorily authorized, it narrowly defines a class of offenders with respect to whom the punishment will be invoked and it prescribes quite specifically the conditions under which an offender may be found guilty of first degree murder. Further, the policy decision of Parliament to classify these murders as first degree murders accords with the broader objectives of a sentencing scheme .

The elevation of murder while committing a forcible confinement to first degree reflects a societal denunciation of those offenders who choose to exploit their position of dominance and power to the point of murder .” [ 155 ] The notion of arbitrariness was examined and clarified by the Supreme Court in Rodriguez v. British Columbia (Attorney General) , [41] in the context of

section 7, with the Court having to rule on whether the provision of the Criminal Code prohibiting aiding a person to commit suicide violated

section 7 of the Charter . “The issue here, then, can be characterized as being whether the blanket prohibition on assisted suicide is arbitrary or unfair in that it is unrelated to the state's interest in protecting the vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs which are said to be represented by the prohibition . [42] Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it can not [ sic ] be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society .

I am thus unable to find that any principle of fundamental justice is violated by s. 241( b ) . [43] A particular limit will be arbitrary if it bears no relation to, or is inconsistent with, the objective that lies behind the legislation . This was the foundation of the decision of the majority of this Court in Morgentaler , supra . [44] ” [Emphasis added.] [ 156 ] Thus, a limit on liberty is arbitrary if it bears no relation to, or is inconsistent with, the objective sought by the legislation.

The following questions are relevant: - What state interest and societal concern is the measure supposed to address? - Does the restriction have its foundation in the legal tradition and social norms? - Is the restriction reflective of fundamental values at play in our society? - Does the restriction bear no relation to, or is it inconsistent with, the objective sought by the legislation?

ANALYSIS [ 157 ] The party seeking to have a law declared unconstitutional generally has the onus of establishing, on a balance of probabilities, the existence of the constitutional violation. [45] In the present case the accused has the burden of convincing the Court, on a balance of probabilities, that the combined effect of

section 742.1 and

section 752 , "serious personal injury offence" (( a )(ii)), of the Criminal Code renders the provisions unconstitutional in that they arbitrarily result in incarceration for people sentenced to imprisonment for causing serious personal injury. [ 158 ] Has the accused discharged that burden with respect to the review criteria for determining the arbitrariness of detention? 1. Is the limit on liberty—negation of the possibility of serving a sentence of detention in the community—statutorily authorized? [ 159 ] Imprisonment is authorized under the combined effect of

section 742.1 and

section 752 , "serious personal injury offence" (( a )(ii)), of the Criminal Code . The law is a shield against arbitrariness. [ 160 ] Imprisonment that flows from the negation of the possibility of serving a sentence of detention in the community is also imposed at the end of an exercise in which a judge, further to his or her analysis of the accused's personal situation and the crime committed, finds

that a sentence of detention is justified under sections 718 et seq. of the Criminal Code in the particular case of the accused . Imprisonment is then mandatory only if the judge finds that the offence in question constitutes a serious personal injury offence as defined in

section 752 of the Criminal Code . [ 161 ] The legal framework is thus well defined. 2. Does the legislation target a narrow class of offenders? [ 162 ] The class of people deprived of the possibility of serving their sentence of detention in the community under the impugned part of

section 742.1 of the Criminal Code is comprised solely of people having committed a serious personal injury offence . [ 163 ] "Serious personal injury offence" is defined in

section 752 of the Criminal Code . Several characteristics must be established for an accused to meet the definition. The accused must have been convicted of a crime: (1) that is an indictable offence, (2) for which the accused may be sentenced to imprisonment for ten years or more, and (3) that involves conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person. [ 164 ] In reference to paragraph (

b) of the definition of "serious personal injury offence", the accused must have been convicted of a crime in the following categories: - an offence or attempt to commit an offence mentioned in

section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). [ 165 ] In fact an accused who does not deserve detention on completion of an exercise under sections 718 et seq. of the Criminal Code is shielded from the undesirable effect of the definition. [ 166 ] It is not a question of determining how many people are contemplated by the definition but rather of determining whether a narrow class of offenders is involved. [ 167 ] The result is that the people contemplated by the combined effect of

section 742.1 and

section 752 ("serious personal injury offence" (( a )(ii)) of the Criminal Code belong to a narrow class of offenders. 3. Is the suspension of conditional sentences of imprisonment in the case of offences causing serious personal injury rationally connected to the legislative objective? [ 168 ] The jurisprudence recognizes the existence of a relation between imprisonment and several of the sentencing objectives in

section 718 et seq. of the Criminal Code , even when imprisonment of the accused is not necessary to protect the public. [ 169 ] The Supreme Court recognized in Proulx [46] that denunciation and general deterrence would in some cases demand imprisonment . [ 170 ] The accused admitted that impaired driving, dangerous operation of a motor vehicle and the resulting fatalities are a scourge, and that the legislative objective of limiting the power of judges to impose conditional sentences of imprisonment is intended to combat that scourge. [47] [ 171 ] However, the accused believes that that objective cannot justify the violations that allegedly result from the application of

section 742.1 and

section 752 ("serious personal injury offence" (( a ) (ii)) of the Criminal Code . [ 172 ] He acknowledged that the legislation precluding a conditional sentence of imprisonment for anyone having caused serious personal injury could be rationally connected to the intended objective of reducing the number of road fatalities, but that experience has not demonstrated such a relation. [ 173 ] He affirmed that several U.S. and Canadian studies show that serving a sentence of imprisonment in custody, compared with serving it in the community, does not reduce the danger. [ 174 ] He argued that the conditions for the application of conditional sentences of imprisonment prior to the impugned amendments were adequate and that the amendments unfairly limit the Court's exercising of its discretionary power in regard to sentencing. [48] [ 175 ] The impleaded party, the Attorney General of Québec, submitted that the legislator can validly deprive judges of the discretionary power to impose conditional sentences of imprisonment.

It based that submission on the Supreme Court's recognition of the legislator's power to impose minimum sentences for certain offences, as in R. v. Morissey and R. v. Ferguson . [49] [ 176 ] It is also based on R. v. Nasogaluak , [50] in which the Supreme Court reiterated the legislator's power to constrain the power of sentencing judges. “[44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance

with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [45] The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectivesenshrined in ss. 718 to 718.2 articulated above but also through the restricted availability of certain sanctions in the Code.

For instance, s.732 prohibits a court from ordering that a sentence of imprisonment exceeding 90 days be served intermittently. Similar restrictions existfor sanctions such as discharges (s. 730), fines (s. 734), conditional sentences (s. 742.1) and probationary terms (s. 731). Parliament hasalso seen fit to reduce the scope of available sanctions for certain offences through the enactment of mandatory minimum sentences. Arelatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in the area ofcriminal law.

Certain minimum sentences have been successfully challenged under s. 12 of the Charter on the basis that they constitutedgrossly disproportionate punishment in the circumstances of the case (R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v.Bill (1998), (BC SC), 13 C.R. (5th) 125 (B.C.S.C.)), while others have been upheld (R. v. Morrisey, 2000 SCC 39,[2000] 2 S.C.R. 90). Absent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the Code.

Ajudge’s discretion does not extend so far as to override this clear statement of legislative intent.” [177] To decide whether there is a rational connection between the suspension of conditional sentences of imprisonment in the case ofoffences causing serious personal injury and the legislative objective, it is appropriate to determine whether the legislative criteria forsubjecting offenders to the measure are arbitrary in light of the objectives sought. [178] Having determined that, at a minimum, the legislative objective is to protect society and, more specifically, to prevent the scourgeof criminal operation of an automobile causing harm or death, as admitted by the accused, what can the Court conclude about thearbitrariness of the impugned legislation? [179] State interest in, and societal concerns about, the prevention of serious personal injury are legitimate and recognized. [180] The limit on liberty through imprisonment is couched in legal tradition and societal beliefs.

This is reflected in the Criminal Codeand the jurisprudence, even after conditional sentences were statutorily enshrined. Since such sentences became an option, Canadiancourts have turned to both of these measures daily to punish, rehabilitate, deter and denounce. [181] In Proulx,[51] the Supreme Court examined the reasons why the legislator created the conditional sentence of imprisonment andpassed paragraphs 718.2(

d) and (

e) of the Criminal Code to curtail the use of imprisonment as punishment. It recognized the problem ofexcessive recourse to incarceration in Canada.

It further recognized that incarceration is a costly measure that is often unduly harsh andineffective in regard to the stated objectives of reintegration into society and relative to its broader public objectives.[52] [182] The Court summarized the legislative intent as follows: “20 Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure ofincarceration to rehabilitate offenders and reintegrate them into society.

By placing a new emphasis on restorative principles, Parliamentexpects both to reduce the rate of incarceration and improve the effectiveness of sentencing. During the second reading of Bill C-41 onSeptember 20, 1994 (House of Commons Debates, vol. IV, 1st Sess., 35th Parl., at p. 5873), Minister of Justice Allan Rock made thefollowing statements: “A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there. Alternatives should beput in place for those who commits [sic] offences but who do not need or merit incarceration.

Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society. . . . [T]his bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation tovictims and promoting in criminals a sense of accountability for what they have done. It is not simply by being more harsh that we will achieve more effective criminal justice.

We must use our scarce resources wisely.” [183] Since they became part of Canadian criminal law, conditional sentences of imprisonment have shown their value and usefulnessas a measure available to the courts. They are an additional tool for tailoring sentences as much as possible to the circumstances relatingto the offence or the offender, which is one of the principles of sentencing.

They allow for stiff punishment and fostering reintegrationinto society, without jeopardizing public safety. [184] The jurisprudence and the documentary evidence submitted by the accused strongly support that observation by the Court. [185] The exercise for the Court in the present case does not consist in expressing its preference for a correctional philosophy; the Courtmust determine whether a right has been infringed and, if so, whether the infringement is justified.[53] The parameters for examining theconstitutional right in question are found in Supreme Court decisions, as are the factors for assessing the potential arbitrariness of a limiton liberty.

Rights must be interpreted broadly and purposively.[54] Imprisonment is an additional limit on liberty, compared with theresidual liberty of a person on whom a conditional sentence of imprisonment is imposed. [186] The rational connection between the inconsistency of conditional imprisonment and certain crimes has been recognized by thecourts when standard sentencing objectives, such as the need for societal condemnation, predominate. [187] The courts have recognized in particular the importance of the objectives of denunciation and deterrence in the case of dangerousoperation and impaired driving causing death and bodily harm.

In many instances they have preferred detention in custody, without thelegislator's having imposed the conclusion of the decision. [188] To prove the arbitrariness of the restriction on imposing conditional sentences in the case of serious personal injury offences, theaccused chose to adduce general evidence of legislative facts pertaining to the social context in which the provisions making for a

harsher sentencing system in Canada were enacted, and to the perception of the provisions of the members of the legal profession working in criminal justice, along with a few statistical studies. The statistical studies that he filed on recourse to incarceration in Canada and the United States tend to show that, as a rule, incarceration is not more of a deterrent than a conditional sentence. [ 189 ] According to the documentary evidence, the Barreau du Québec, like other pressure groups, opposed depriving judges of the power to impose conditional sentences of imprisonment.

Among other things, the Barreau pointed out that one of the problems with the draft legislation was that a number of offences covered by the prohibition against conditional sentences involved no element of violence. It noted as well that, in the case of impaired driving, a Canada Safety Council study concluded that there was no scientific or empirical evidence to support the hypothesis that abolishing conditional sentences would be effective in ensuring safety.

The Barreau therefore requested that an actual consultation process be held before the law was enacted. [ 190 ] That documentary evidence was adduced without objection or contestation by the Crown. In and of itself, the evidence does not enable the Court to conclude that, in the specific case of serious personal injury offences, the benefits of imprisonment in the community exceed or do not exceed those of imprisonment in c

[…]